Thursday, May 07, 2009

I just finished up writing a policy piece on post-Guantánamo detention policy and human rights for a small international thinktank. This took far more time than originally requested. Much of the reason had to do with trying to understand the complexities of two difficult issues. One is the matter of crafting an appropriate detention policy for "war on terror" detainees. This is an absolute mess today mainly because the Bush administration tortured many of the detainees (i.e., evidence is fundamentally corrupted) - this ultimately entails further violations of the law precisely because no good options have been left for Bush's successors. But let's set this issue aside for now (or see this post from last week).

The other extremely difficult issue is, of course, accountability for the torture policy. I don't have much time today to talk more about this, but my own view - developed in that paper - is that there absolutely must be a public accounting for the sake of the country. Not just the DOJ investigations. This has to be a real public discussion guided by a transparent and fair congressional investigation and transparent and publicly released findings (this is Congress' role, after all, as democratically-elected representatives). There will be exceptions on some national security matters. But claiming umbrella state secrets privilege in the name of national security will only postpone the inevitable and further corrode trust in the US government and, internationally, the country as a whole.

Accountability is meaningless if all we're getting is a dry, technical legal analysis. The question of the torture policy itself doesn't go away if DOJ finds that the OLC memo lawyers wrote the memos in good faith and thus should not be prosecuted. It doesn't go away if some CIA interrogators are ultimately locked up. This was large-scale, carefully-coordinated policy - an institution, as I've been saying ad nauseum - for which accountability will only be a full public reckoning with how and why we got to where we are. However the US goes about this public reckoning, it will have profound consequences for the present and future.

Barack Obama appears to be in something of a quandary over the torture issue. On the one hand, he and his senior advisors clearly seem to recognize what the law requires: an investigation of the torture policies of the Bush era, conducted by a prosecutor with a clear mandate to bring prosecutions as the law requires. On the other hand, Obama believes he has met his pledge to end torture as a matter of U.S. policy, and the controversy swirling around the torture question may get in the way of his affirmative agenda—things like the restructuring of the financial services sector, health care reform, and foreign policy initiatives. On one point the White House’s desires overlap perfectly with those of the torture-enablers: they wish this whole issue would just go away. So what’s Obama to do? His White House first gave a signal that as a matter of official policy there would be no investigation or prosecution. That, of course, constituted a gross intrusion of political figures into the criminal justice system, and an embarrassed White House was forced to pull back the next day after the Justice Department made this point.

But Barack Obama does have a Constitutional role to play in this process—he has the pardon power under Article II, Section 2, Clause 1. The Justice Department has written guidelines, routinely disregarded by presidents in the past, which suggest that pardons are appropriate only when the criminal justice process has run its course and the prisoner has served his sentence. These guidelines assume, of course, that the Justice Department has properly played its role; they ignore the fact that, as is copiously evident from the last eight years, the Justice Department misfires, perpetrates gross injustices, and stubbornly refuses to own up to its misconduct. In these circumstances, it would be improper for the president to pay any attention to the guidelines, which serve the interests of the Justice Department, but not of justice. Properly viewed, the limits on the president’s pardon power come from the Constitution alone. That means that Obama would probably be free to issue a blanket and pre-emptive pardon of the torture policy makers, if he chose to do so. (The pardon power goes to “offenses against the United States,” of course, and it may not reach to a jus cogens crime like torture–that is still an open question under U.S. jurisprudence.)

But would such a pardon be effective? Inside the boundaries of the United States, the pardon would probably stand up unless a court decides that the Framers did not intend to include jus cogens crimes in the scope of those the president could pardon–not a terribly likely outcome considering the current bench, two-thirds of whose members are Republican appointees and many of whom struggle to disguise their contempt for anything “international.” But a blanket pardon, especially one that preempts specific fact-finding and avoids a determination as to individual culpability, looks suspiciously like impunity, and outside the United States, it might have some unintended consequences. First, it would probably be taken as a violation of our undertaking to prohibit torture and prosecute violators. The crime of torture is a jus cogens crime—a crime of universal applicability and enforceable subject to universal jurisdiction. And torturers have a special position in international law. As the United States Court of Appeals in New York reminds us in the landmark case of Filártiga v. Peña-Irala (1980), they are hostis humani generis, the enemies of all humankind. As such they are not entitled to legal defenses, including pardon or amnesty. And if one nation, in disregard of its obligations to the community of nations, should extent amnesty to torturers, that step has consequences. No other nation would recognize the amnesty. Moreover, under universal jurisdiction norms accepted by the United States, this would actually convey jurisdiction on other nations to punish the torturers.